02-4726-ag

To Be Argued By: BRIAN P. LEAMING

========================================

FOR THE SECOND CIRCUIT

Docket No. 02-4726-ag

HE XIONG QIU Petitioner,

-vs- JOHN ASHCROFT, ATTORNEY GENERAL,

Respondent.

ON PETITION FOR REVIEW FROM

THE BOARD OF IMMIGRATION APPEALS

========================================

BRIEF FOR JOHN ASHCROFT

ATTORNEY GENERAL OF THE UNITED STATES

========================================

KEVIN J. O’CONNOR United States Attorney District of Connecticut

BRIAN P. LEAMINGAssistant United States AttorneySANDRA S. GLOVERAssistant United States Attorney (of counsel)

TABLE OF CONTENTS

Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . iii

Statement of Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . ix

Statement of Issues for Review . . . . . . . . . . . . . . . . . . x

Preliminary Statement . . . . . . . . . . . . . . . . . . . . . . . . . 1

Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Summary of Argument . . . . . . . . . . . . . . . . . . . . . . . . 14

Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

I. The IJ Properly Determined That Petitioner Failed to Establish Eligibility for Asylum orWithholding of Removal Because He ProvidedInconsistent and Implausible Testimony . . . . . . . 16

A. Relevant Facts . . . . . . . . . . . . . . . . . . . . . . . . . 16

B. Governing Law and Standard of Review . . . . 16

C. Discussion . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

II. The Court Lacks Jurisdiction over Petitioner’s Claim That the Immigration Judge Failed to Admit Certain Documentary Evidence, butPetitioner’s Claim Lacks Merit in Any Event . . . 32

ii

A. This Court Lacks Jurisdiction Over

Petitioner’s Claim that the IJ Improperly

Excluded Certain Documents Because

Petitioner Did Not Raise This Issue

Before the BIA . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

1. Relevant Facts . . . . . . . . . . . . . . . . . . . . . . . . . 32

2. Governing Law and Standard of Review . . . . 32

3. Discussion . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

B. Petitioner’s Challenge to the IJ’s Evidentiary Ruling Lacks Merit . . . . . . . . . . . . . . 36

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

Certification per Fed. R. App. P. 32(a)(7)(C)

Addendum of Statutes and Regulations

iii

TABLE OF AUTHORITIES

CASES

PURSUANT TO “BLUE BOOK” RULE 10.7, THE GOVERNMENT’S CITATION

OF CASES DOES NOT INCLUDE “CERTIORARI DENIED” DISPOSITIONS THAT

AR E M OR E TH AN TW O Y EAR S O LD .

Abankwah v. INS, 185 F.3d 18 (2d Cir. 1999) . . . . . . . . . . . . . . . . . . 19

Abdulai v. Ashcroft,

239 F.3d 542 (3d Cir. 2001) . . . . . . . . . . . . . . . . . 21

Arango-Aradondo v. INS,

13 F.3d 610 (2d Cir. 1994) . . . . . . . . . . . . . . . 21, 33

Arkansas v. Oklahoma,

503 U.S. 91 (1992) . . . . . . . . . . . . . . . . . . . . . . . . 22

Arnstein v. Porter,

154 F.2d 464 (2d Cir. 1946) . . . . . . . . . . . . . . . . . 23

Bastek v. Federal Crop Ins. Corp.,

145 F.3d 90 (2d Cir. 1998) . . . . . . . . . . . . . . . . . . 34

Carranza-Hernandez v. INS, 12 F.3d 4 (2d Cir. 1993) . . . . . . . . . . . . . . . . . . . . 16

Carvajal-Munoz v. INS, 743 F.2d 562 (7th Cir. 1984) . . . . . . . . . . . . . . . . 17

Chen v. INS, 344 F.3d 272 (2d Cir. 2003) . . . . . . . . . . . . . . passim

iv

Chew v. Boyd,

309 F.2d 857 (9th Cir.1962) . . . . . . . . . . . . . . . . . 33

Coit Independence Joint Venture v.

Federal Sav. & Loan Ins. Corp.,

489 U.S. 561 (1989) . . . . . . . . . . . . . . . . . . . . . . . 34

Consolidated Edison Co. v. NLRB,

305 U.S. 197 (1938) . . . . . . . . . . . . . . . . . . . . . . . 22

Consolo v. Federal Maritime Comm’n,

383 U.S. 607 (1966) . . . . . . . . . . . . . . . . . . . . . . . 22

Correa v. Thornburgh,

901 F.2d 1166 (2d Cir. 1990) . . . . . . . . . . . . . . . . 33

De Souza v. INS, 999 F.2d 1156 (7th Cir. 1993) . . . . . . . . . . . . . . . 17

Diallo v. INS, 232 F.3d 279 (2d Cir. 2000) . . . . . . . . . . . . . . passim

Dokic v. INS,

899 F.2d 530 (6th Cir. 1990) . . . . . . . . . . . . . . . . 34

Ghaly v. INS, 58 F.3d 1425 (9th Cir. 1995) . . . . . . . . . . . . . . . . 17

Howell v. INS, 72 F.3d 288, 291 (2d Cir. 1995) . . . . . . . . . . . . . . 33

v

INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) . . . . . . . . . . . . . . . . . . . . . . . 17

INS v. Elias-Zacarias,

502 U.S. 478 (1992) . . . . . . . . . . . . . . . . . . . . 22, 37

INS v. Stevic, 467 U.S. 407 (1984) . . . . . . . . . . . . . . . . . . . . . . . 20

Khouzam v. Ashcroft, 361 F.3d 161 (2d Cir. 2004) . . . . . . . . . . . . . . . . . . 2

Kokkinis v. District Dir. of INS,

429 F.2d 938 (2d Cir. 1970) . . . . . . . . . . . . . . . . . 23

Liao v. U.S. Dep’t of Justice, 293 F.3d 61 (2d Cir. 2002) . . . . . . . . . . . . . . . . . . 17

McCarthy v. Madigan,

503 U.S. 140 (1992) . . . . . . . . . . . . . . . . . . . . . . . 34

Melendez v. U.S. Dep’t of Justice, 926 F.2d 211 (2d Cir. 1991) . . . . . . . . . . . . . . . . . 19

Melgar de Torres v. Reno, 191 F.3d 307 (2d Cir. 1999) . . . . . . . . . . . . . . passim

Mitev v. INS, 67 F.3d 1325 (7th Cir. 1995) . . . . . . . . . . . . . . . . 17

Montero v. INS,

124 F.3d 381 (2d Cir. 1997) . . . . . . . . . . . . . . . . . 23

vi

Nelson v. INS, 232 F.3d 258 (1st Cir. 2000) . . . . . . . . . . . . . . . . 17

NLRB v. Columbia Univ.,

541 F.2d 922 (2d Cir. 1976) . . . . . . . . . . . . . . . . . 24

Norton v. Sam’s Club, 145 F.3d 114 (2d Cir. 1998) . . . . . . . . . . . . . . . . . . . . 13

Opere v. INS,

267 F.3d 10 (1st Cir. 2001) . . . . . . . . . . . . . . . . . 33

Osorio v. INS, 18 F.3d 1017 (2d Cir. 1994) . . . . . . . . . . . . . . 17, 18

Qiu v. Ashcroft,

329 F.3d 140 (2d Cir. 2003) . . . . . . . . . . . . . . 23, 24

Ramani v. Ashcroft,

378 F.3d 554 (6th Cir. 2004) . . . . . . . . . . . . . . . . 34

Ramsameachire v. Ashcroft, 357 F.3d 169 (2d Cir. 2004) . . . . . . . . . . . . . . . . . 20

Ravindran v. INS,

976 F.2d 754 (1st Cir. 1992) . . . . . . . . . . . . . . . . 35

Richardson v. Perales,

402 U.S. 389 (1971) . . . . . . . . . . . . . . . . . . . . . . 22

Sarvia-Quintanilla v. United States INS,

767 F.2d 1387 (9th Cir. 1985) . . . . . . . . . . . . . . . 23

vii

Secaida-Rosales v. INS, 331 F.3d 297 (2d Cir. 2003) . . . . . . . . . . . . . . . . . 21

Sun v. Ashcroft,

370 F.3d 932 (9th Cir. 2004) . . . . . . . . . . . . . . . . 34

Theodoropoulos v. INS,

358 F.3d 162 (2d Cir. 2004) . . . . . . . . . . . 33, 34, 35

United States v. LaSpina,

299 F.3d 165 (2d Cir. 2002) . . . . . . . . . . . . . . . . . 24

Vatulev v. Ashcroft,

354 F.3d 1207 (10th Cir. 2003) . . . . . . . . . . . . . 35

Zhang v. INS, 386 F.3d 66 (2d Cir. 2004) . . . . . . . . . . . . . . . passim

Zhang v. Slattery, 55 F.3d 732 (2d Cir. 1995) . . . . . . . . . . . . . . . 16, 20

Zhao v. U.S. Dep’t of Justice, 265 F.3d 83 (2d Cir. 2001) . . . . . . . . . . . . . . . . . . 18

STATUTES

8 U.S.C. § 101 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

8 U.S.C. § 1101 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

8 U.S.C. § 1158 . . . . . . . . . . . . . . . . . . . . . . . 16, 17, 19

8 U.S.C. § 1231 . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 20

viii

8 U.S.C. § 1252 . . . . . . . . . . . . . . . . . . . . . . . . . . passim

8 U.S.C. § 1253 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

OTHER AUTHORITIES

8 C.F.R. § 3.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

8 C.F.R. § 287 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

8 C.F.R. § 208.13 . . . . . . . . . . . . . . . . . . . . . . . . . 18, 19

8 C.F.R. § 208.16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

8 C.F.R. § 1003.1 . . . . . . . . . . . . . . . . . . . . . . . . . 14, 21

68 Fed. Reg. 9824 (Feb. 28, 2003) . . . . . . . . . . . . . . 14

In re C-Y-Z-, 21 I. & N. Dec. 915, 1997 WL 353222 (BIA June 4, 1997 . . . . . . . . . . . 18

In re S-M-J-, 21 I. & N. Dec. 722, 723-26, 1997 WL 80984 (BIA Jan 31, 1997) . . . . . . . . . . 19

Matter of Mogharrabi, 19 I. & N. Dec. 439, 1987 WL 108943 (BIAJune 12, 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

The United Nations Convention Against Torture

and Other Cruel, Inhuman or Degrading

Treatment or Punishment, Dec. 10, 1984 . . . . . 2, 13

ix

STATEMENT OF JURISDICTION

Petitioner is subject to a final order of removal. This

Court has appellate jurisdiction under § 242(b) of the

Immigration and Naturalization Act, 8 U.S.C. § 1252(b)

(2004), to review Petitioner’s challenge to the Board of

Immigration Appeal’s October 8, 2002, final order

denying him asylum and withholding of removal.

Although Petitioner also challenges the Immigration

Judge’s refusal to admit certain documents into evidence,

Petitioner failed to raise this issue before the Board of

Immigration Appeals and thus this Court lacks jurisdiction

to consider that claim. See Immigration and Naturalization

Act § 242(d)(1), 8 U.S.C. § 1252(d)(1).

x

STATEMENT OF ISSUES FOR REVIEW

1. Whether a reasonable fact-finder would be compelledto reverse the Immigration Judge’s adverse credibilitydetermination, where Petitioner’s testimony containedseveral inconsistencies concerning key elements of hisclaim and where Petitioner failed to adequately explain theinconsistencies.

2. Whether the Court lacks subject matter jurisdictionover Petitioner’s claim that the Immigration Judge failedto admit certain documentary evidence when Petitionerfailed to raise the issue before the Board of ImmigrationAppeals.

FOR THE SECOND CIRCUIT

Docket No. 02-4726-ag

HE XIONG QIU,

Petitioner,-vs-

JOHN ASHCROFT, ATTORNEY GENERAL, Respondent.

ON PETITION FOR REVIEW FROM

THE BOARD OF IMMIGRATION APPEALS

BRIEF FOR JOHN ASHCROFT

Attorney General of the United States

Preliminary Statement

He Xiong Qiu, a native and citizen of the People’sRepublic of China, petitions this Court for review of anOctober 8, 2002, decision of the Board of ImmigrationAppeals (“BIA”). (Joint Appendix (“JA”) 2). The BIAsummarily affirmed the April 26, 2000, decision of anImmigration Judge (“IJ”) (JA 24-26) denying Petitioner’sapplications for asylum and withholding of removal underthe Immigration and Nationality Act of 1952, as amended(“INA”), rejecting his claim for relief under the

1 The United Nations Convention Against Torture andOther Cruel, Inhuman or Degrading Treatment or Punishment,Dec. 10, 1984, has been implemented in the United States bythe Foreign Affairs Reform and Restructuring Act of 1998,Pub. L. 105-277, Div. G Title XXII, § 2242, 112 Stat. 2681-822(1998) (codified at 8 U.S.C. § 1231 note). See Khouzam v.Ashcroft, 361 F.3d 161, 168 (2d Cir. 2004).

2

Convention Against Torture (“CAT”),1 and ordering himremoved from the United States.

Petitioner sought asylum and withholding of removalbased on his assertion that his wife had been subjected toa forced sterilization in China. Substantial evidencesupports the IJ’s determination that Petitioner failed toprovide credible testimony and evidence in support of thisclaim. The IJ found that Petitioner’s testimony containedseveral inconsistencies and implausibilities, thatPetitioner’s credibility was undermined when he admittedto previously fabricating information for the purpose ofobtaining an immigration benefit, and that Petitioner’sdemeanor and manner in responding to questions furtherundermined his credibility.

In this Court, Petitioner claims that the IJ erred byrefusing to admit certain documents into evidence. ThisCourt lacks jurisdiction to consider this claim, however,because Petitioner did not raise this issue before the BIA.

3

Statement of the Case

Petitioner entered the United States without inspectionon or about December 8, 1992, and requested asylum byapplication dated June 21, 1993.

On July 3, 1997, Petitioner was issued a Notice toAppear, and an IJ subsequently conducted a removalhearing. On April 26, 2000, the IJ issued an oral decisiondenying Petitioner’s application for asylum, withholding

of removal, and relief under the CAT.

On October 8, 2002, the BIA affirmed, withoutopinion, the decision of the IJ. Thereafter, on November7, 2002, the present Petition for Review was filed.

Statement of Facts

A. Petitioner’s Entry into the United States

and Application for Asylum and

Withholding of Removal

Petitioner entered the United States without inspection

on or about December 8, 1992. (JA 194). On June 21,

1993, he requested asylum, claiming that he left China in

July 1992 because he had been persecuted for resistance to

China’s family planning policies. (JA 194-99).

On June 18, 1997, Petitioner supplemented his asylum

application with an affidavit in which he claimed that the

Chinese government had demanded that his wife undergo

an abortion when she was nine months pregnant with

twins. (JA 200). According to the affidavit, Petitioner’s

4

wife hid in her mother’s house, while Petitioner remained

in their house. When government officials came to

Petitioner’s house looking for his wife, they removed

property and engaged Petitioner in a fight before he

managed to escape. Id. Petitioner affirmed that he

“scraped by for about one year” in another district before

deciding to travel to the United States. Id. Fearing arrest

if he returned home, Petitioner was smuggled from China

to Mexico where he remained for two days before entering

the United States across the U.S.-Mexico border. (JA 200-

201).

B. Petitioner’s Removal Proceedings

On July 3, 1997, Petitioner was served in hand with a

Notice to Appear, charging that he was removable under

§ 212(a)(6)(A)(i) of the INA as an alien present in the

United States who had not been admitted or paroled. (JA

234). Petitioner appeared, with counsel, before an IJ on

November 21, 1997, conceded that he was removable as

charged, and stated that he was seeking asylum and

withholding of removal. (JA 40-44). The hearing was

continued several times until it was concluded on April 26,

2000. (JA 45-47, 48-99, 100-106, 107-11).

1. Documentary Submissions

During a 1999 removal hearing, the IJ admitted intoevidence the Notice to Appear, Petitioner’s asylumapplication, and the State Department’s Country Report on

2 The transcript from this hearing (JA 48-99) is undated,but it appears likely that the hearing was in 1999.

5

China.2 (JA 50-51, 54). In addition, Petitioner submittedcopies of eleven documents to support his asylumapplication. Even though eight of the documents (Exhibits3-10) had stamps indicating that an asylum officer hadreviewed the originals and returned them to Petitioner,Petitioner did not have originals of any of the documentsat the hearing. The IJ marked the copies for identificationand notified Petitioner that he needed to obtain originalsbefore they would be admitted into evidence. (JA 50-54).

The following documents were marked foridentification at the 1999 hearing:

Exhibit 3: July 1996 Receipt for Payment fromTingjiang Town Birth Control Office, in the amount of700 yuan for a birth control fine. (JA 192).

Exhibit 4: June 3, 1996 Notice to Petitioner and hiswife from Tingjiang Town Birth Control Office, reportinga violation of birth control regulations in December 1989for having two children in excess of birth control limits.(JA 190). The notice also stated that the amount of fine is1500 yuan, with payment of 700 yuan still outstanding.Id.

Exhibit 5: November 18, 1992 Receipt for Payment,from Tingjiang Town Birth Control Office, in the amountof 500 yuan as a fine for the birth of two children inDecember 1989. (JA 188).

6

Exhibit 6: 1995 Receipt for Payment from TingjiangTown Birth Control Office, in the amount of 300 yuan asa fine for the birth of two children in December 1989. (JA186).

Exhibit 7: March 20, 1992 Birth Control OperationLetter, directed to Zheng Bao Yu. (JA 184).

Exhibit 8: March 20, 1992 Surgical OperationCertification, with a stated diagnosis of “Tubal ligation onboth Fallopian tubes.” (JA 182).

Exhibit 9: Petitioner’s Notarial Birth Certificate. (JA177).

Exhibit 10: Two photographs. (JA 176).

Exhibit 11: October 15, 1990 Marriage Certificate,documenting the union of Qiu He-Xiong and Zheng Bao-Yu. (JA 172-73).

Exhibit 12: October 10, 1994 Household Register forhead of household, Zheng Bao-Yu, documenting her threesons. (JA 160-64).

Exhibit 13: July 16, 1997 Certificate, documenting thedelivery by Zheng Bao-Yu of twin boys on October 22,1990. (JA 158).

At the close of the 1999 hearing, Exhibits 11 and 12were admitted into evidence. (JA 98). The hearing wascontinued through two more appearances before the IJ,and although Petitioner submitted an additional document

7

to support his asylum application (Exhibit 15, February 8,2000 Radiology Report from Guam Memorial Hospital(JA 108, 112)), he made no attempt to submit originals ofthe other documents he had first presented in 1999.

2. Petitioner’s Testimony

Petitioner testified that he married Zheng Bao-Yu onFebruary 5, 1987, but did not immediately register themarriage. (JA 55-56). According to Petitioner, theyobtained a marriage license in mid-October 1990 whenthey were notified to do so by the local township authority.(JA 56, 172-73). Petitioner averred that he and his wifeapplied for a marriage certificate two to three monthsbefore it was issued. (JA 57).

Petitioner also provided testimony regarding hisimmediate family. In particular, Petitioner testified thathis first child, a boy, was born at Tingjiang Hospital onNovember 11, 1988. (JA 58-59). According to histestimony, Petitioner did not immediately register the birthof his first son, but did so after he and his wife paid a fine.(JA 58). On October 22, 1990, Petitioner’s wife gave birthto twin boys. (JA 59).

During direct examination, Petitioner testified that allthree boys were registered together after paying a fine of1500 yuan. (JA 60). Petitioner averred that the fine hadto be paid to the village officials in order to register thechildren, but that he did not have enough money, so hepaid the fine in two installments. Id. Petitioner could notrecall when he paid the fine, but he remembered paying itafter he arrived in the United States. (JA 61). Petitioner

8

also testified that despite paying the fine, his fine wasdoubled, and an unspecified amount remains outstanding.(JA 61-62).

As direct examination proceeded, Petitioner explainedthat he left China on July 9, 1990. (JA 62). Petitionerexplained further that he left China because the localfamily officials strictly enforced family planning,attempted to arrest his wife, and partially destroyed hishome. Id. According to Petitioner, when he and his wifeapplied for a marriage certificate, in March or April 1990,her second pregnancy was detected. (JA 63). Severaldays later, Petitioner and his wife received a noticedirecting her to report for a medical examination. Id. Inaddition, the local village officials attempted to arrestPetitioner’s wife after they applied for the marriagecertificate in April 1990. (JA 64). Petitioner subsequentlytestified that it was around the month of March that he andhis wife applied for the marriage certificate and the villageofficials attempted to arrest his wife. (JA 63-65).

The manner in which village officials attempted toarrest Petitioner’s wife is not explained in the testimony.Petitioner related, however, that the day they receivednotice that his wife must report for an examination, hefeared that the local authorities would “send somebodyhere to get her” so he sent her to her parents’ house. (JA65-66, 68). The village officials arrived at Petitioner’shouse the day following his wife’s departure. (JA 68).Upon arrival, the local officials demanded to know thewhereabouts of Petitioner’s wife, but he refused to tellthem. (JA 69). The village officials then proceeded todestroy parts of his house and certain equipment and

9

property. (JA 69-71). A physical confrontation ensued,during which Petitioner claimed he was assaulted by townofficials. (JA 71-72). During the confrontation, Petitionerescaped through the back door. (JA 72).

After a four to five hour trek through the mountains,Petitioner rode a bus from Fuzhou City to Xiamen City.(JA 73). He testified that he remained in Xiamen for“more than a year” before leaving China on July 9, 1990.(JA 75). Petitioner subsequently clarified his testimony toexplain that he left China in 1992, not 1990. Id.Smuggled on a Taiwanese fishing boat, Petitioner departedChina to arrive in Mexico where he stayed two days beforeentering the United States. (JA 79-80). Petitioner testifiedthat if he were returned to China, he believed he would bearrested. (JA 83).

Petitioner also testified that on March 20, 1992, hiswife was sterilized, although he does not know why shewas sterilized. (JA 77). In describing how he learned ofthe sterilization, Petitioner related that after arriving in theUnited States, he spoke with his wife by telephone and she“first . . . mention we have twin baby [sic].” (JA 77-78).She then explained, Petitioner attested, that she waspressured to submit to sterilization. (JA 78).

During cross-examination, Petitioner acknowledgedthat when he married, his wife was not yet 18 years of age.(JA 84). He acknowledged further that, despite having achild before his wife turned 20, they encountered noproblems with the local officials. (JA 84-85). Petitioneradmitted, however, that “between the period of ‘89 or ‘90”he and his wife were fined. (JA 85). Petitioner explained

10

that they were “fined” for the second pregnancy “in orderto go ahead with it.” (JA 85-86). After the fine was paid,according to Petitioner, his wife was allowed to becomepregnant. (JA 86). The fine paid for the secondpregnancy was approximately 2000 yuan. (JA 87). Whenquestioned as to his previous testimony that he was fined1500 yuan, Petitioner stated that the local officials also“pocket[ed]” some of the fine money. Id.Notwithstanding the payment of the fine, Petitionertestified that he and his wife received notice directing hiswife to undergo a medical examination, or if she waspregnant, an abortion. (JA 88).

Further cross-examination probed additionalinconsistencies in Petitioner’s story. For example,Petitioner’s testimony that local officials demanded thathis wife abort her pregnancy during the third monthconflicted with his asylum application where he had statedthat the officials demanded she undergo an abortion duringthe ninth month of her pregnancy. On cross examination,he admitted that he “made up” the claim in his asylumapplication. (JA 88-89). As the examination continued,Petitioner contradicted his earlier testimony when hestated that he learned of his wife’s sterilization when he“was planning to escape [China].” (JA 91). Whenquestioned why he did not mention the sterilization in hisasylum application, Petitioner explained that “perhaps” hedid not have “enough proof” for his claim of asylum. (JA92). When Petitioner was questioned why he previouslyreported to INS that his date of marriage was February 25,1992, he responded that he “pick[ed] . . . a day, any daythat . . . c[a]me . . . to mind.” (JA 95). In explaining theinconsistencies between his testimony and his asylum

11

application, Petitioner stated that “all [he] care[d]” for atthe time was his “CA [employment] card.” (JA 96).

C. IJ’s Decision

On April 26, 2000, the IJ rendered an oral decisiondenying Petitioner’s requested relief. (JA 27-39). Aftersummarizing the applicable legal standard and theevidence presented during the hearing, the IJ noted thatseveral of the documents submitted by Petitioner were notadmitted into evidence “because there are no originalsavailable or they are official documents and have not beenauthenticated as required under 8 C.F.R. 287 (46) [sic287.6].” (JA 34). After having considered all thetestimony and evidence presented, the IJ concluded thatPetitioner did not sustain “his burden of proving pastpersecution or well-founded fear of persecution on accountof any of the grounds enumerated in the [Immigration andNationality] Act.” (JA 34-35).

The IJ found that Petitioner failed to advance a credibleclaim of past persecution based on the alleged forcedsterilization of his wife. (JA 35). In so holding, the IJidentified several inconsistencies with Petitioner’stestimony. In particular, the IJ noted the inconsistencybetween Petitioner’s testimony and his asylum applicationwith regard to the status of his wife’s pregnancy when thevillage officials demanded she abort her secondpregnancy. Id. The IJ also noted that Petitioner hadprovided inconsistent testimony about when he learned ofhis wife’s sterilization. Id.

12

The IJ also commented on certain implausibilities withPetitioner’s testimony. Id. Specifically, Petitionertestified that he paid a fine or a bond to allow his wife tocontinue her second pregnancy, yet the local officialssubsequently demanded that she abort the pregnancy. (JA35-36).

Petitioner’s credibility was further undermined,according to the IJ, when he admitted to fabricating hisasylum application so he could obtain a simple workauthorization card. (JA 36). If Petitioner was willing to“manufacture a story” to obtain his work authorizationcard, the IJ surmised, he would be willing to manufacturea story to obtain asylum. Id.

The IJ expressed further concern with Petitioner’scredibility because of his demeanor. Id. Petitioner was“extremely slow” in answering questions and was“extremely hesitant” in responding to questions involvingspecific dates or information. Id. In addition, Petitionerbecame “extremely flustered” and responded slower andwith more hesitancy during cross examination. Id.Petitioner also appeared “puzzled and confused,” and wasevasive and unresponsive during cross examination,particularly when questioned on his wife’s sterilization.(JA 36-37). The IJ credited the radiology report asestablishing the wife’s sterilization, but noted thatPetitioner failed to prove it was forced. (JA 37).

Having concluded that Petitioner failed to prove pastpersecution or a well-founded fear of future persecution,Petitioner logically failed to establish his eligibility forwithholding of removal under Section 241(b)(3). (JA 37).

3 The IJ denied Petitioner relief under the CAT eventhough Petitioner never sought relief on that ground. (See JA43, 46). Petitioner does not seek relief under CAT in thisCourt, nor did he challenge the IJ’s decision denying him suchrelief before the BIA. See Norton v. Sam’s Club, 145 F.3d 114,117 (2d Cir. 1998) (“Issues not sufficiently argued in the briefsare considered waived and normally will not be addressed onappeal.”).

13

Furthermore, based on Petitioner’s unreliable andincredible testimony, the IJ also concluded that Petitionerwas not entitled to relief under the CAT.3 Id. Whereupon,the IJ denied Petitioner’s application for asylum andwithholding of removal, his request for relief under theCAT, and his request for voluntary departure. (JA 38).Petitioner was ordered removed to China. Id.

D. The BIA Proceedings and Decision

On May 1, 2000, Petitioner filed a notice of appeal to

the BIA. (JA 18-20). In this notice, Petitioner claimed

that the decision of the IJ was not “sustainable under

existing law” because the IJ improperly weighed the

evidence which demonstrated that Petitioner and his wife

had been persecuted by the Chinese government for

violating China’s family planning policy. (JA 19).

Petitioner advanced two arguments in his brief to the

BIA. First, Petitioner argued that he established an

entitlement to a grant of asylum based on his wife’s forced

sterilization and that the IJ’s finding that there was no

evidence of “forced” sterilization is not supported by the

record. (JA 7-8). Second, Petitioner argued that the IJ’s

4 That section has since been redesignated as 8 C.F.R.§1003.1(e)(4). See 68 Fed. Reg. 9824, 9830 (Feb. 28, 2003).

14

adverse findings on his credibility were speculative. (JA

9). For these reasons, Petitioner maintained, he should be

entitled to asylum. (JA 10).

On October 8, 2002, the BIA summarily affirmed theIJ’s decision and adopted it as the “final agencydetermination” under 8 C.F.R. § 3.1(e)(4) (2002).4 (JA 2).This petition for review followed.

SUMMARY OF ARGUMENT

I. Substantial evidence supports the IJ’s determinationthat Petitioner failed to provide credible testimony insupport of his application for asylum and withholding ofremoval and thus failed to establish his eligibility forrelief. The IJ found that Petitioner’s admitted willingnessto fabricate information in his asylum applicationundermined his credibility. Moreover, the IJ noted that

Petitioner’s account contained inconsistencies andimplausibilities that went to the heart of his claims and thatPetitioner could not explain these problems with histestimony. For example, Petitioner gave inconsistenttestimony about when and how he learned of his wife’ssterilization, provided conflicting evidence about the stateof her pregnancy when local officials allegedly demandedthat she have an abortion, and told the implausible storythat local officials authorized his wife’s second pregnancybut then, upon discovering the pregnancy, immediatelydemanded that she end that pregnancy.

15

These inconsistencies and implausibilities, whencoupled with the IJ’s observations of Petitioner’sdemeanor, provided substantial evidence to support theIJ’s decision. Petitioner cannot meet his burden ofshowing that a reasonable factfinder would be compelledto conclude he is entitled to relief.

II. This Court lacks jurisdiction to review Petitioner’s

claim that the IJ improperly excluded certain documents

from evidence. Petitioner did not raise this issue before

the BIA and therefore did not exhaust his administrative

remedies. Because petitioner did not exhaust his

administrative remedies as required by the INA, this Court

lacks jurisdiction to review the claim.

Petitioner’s claim lacks merit in any event. Petitioner

was given the opportunity to produce the original

documents for consideration by the IJ but failed to avail

himself of that opportunity. But even if Petitioner had

produced the original documents for submission to the IJ,

the documents would not have helped his case. Some of

the documents were irrelevant to the issues before the IJ,

while others were duplicative of testimony that the IJ had

already credited. And although some of the documents

would have supported Petitioner’s claim that he paid fines

for having too many children, those same documents

contradicted Petitioner’s testimony in some respects and so

could have harmed his case. In sum, the IJ’s refusal to

admit the documents did not harm Petitioner.

5 “Removal” is the collective term for proceedings thatpreviously were referred to, depending on whether the alien hadeffected an “entry” into the United States, as “deportation” or“exclusion” proceedings. Because withholding of removal isrelief that is identical to the former relief known as withholdingof deportation or return, compare 8 U.S.C. § 1253(h)(1) (1994)with id. § 1231(b)(3)(A) (2004), cases relating to the formerrelief remain applicable precedent.

16

ARGUMENT

I. THE IJ PROPERLY DETERMINED THAT

PETITIONER FAILED TO ESTABLISH

ELIGIBILITY FOR ASYLUM OR

WITHHOLDING OF REMOVAL BECAUSE HE

PROVIDED INCONSISTENT AND

IMPLAUSIBLE TESTIMONY.

A. Relevant Facts

The relevant facts are set forth in the Statement of the

Facts above.

B. Governing Law and Standard of Review

Two forms of relief are potentially available to aliens

claiming that they will be persecuted if removed from this

country: asylum and withholding of removal.5 See 8

U.S.C. §§ 1158(a), 1231(b)(3) (2004); Zhang v. Slattery,

55 F.3d 732, 737 (2d Cir. 1995). Although these types of

relief are “‘closely related and appear to overlap,’”

Carranza-Hernandez v. INS, 12 F.3d 4, 7 (2d Cir. 1993)

17

(quoting Carvajal-Munoz v. INS, 743 F.2d 562, 564 (7th

Cir. 1984)), the standards for granting asylum and

withholding of removal differ, see INS v. Cardoza-

Fonseca, 480 U.S. 421, 430-32 (1987); Osorio v. INS, 18

F.3d 1017, 1021 (2d Cir. 1994).

1. Asylum

An asylum applicant must, as a threshold matter,

establish that he is a “refugee” within the meaning of 8

U.S.C. § 1101(a)(42) (2004). See 8 U.S.C. § 1158(a)

(2004); Liao v. U.S. Dep’t of Justice, 293 F.3d 61, 66 (2d

Cir. 2002). A refugee is a person who is unable or

unwilling to return to his native country because of past

“persecution or a well-founded fear of persecution on

account of” one of five enumerated grounds: “race,

religion, nationality, membership in a particular social

group, or political opinion.” 8 U.S.C. § 1101(a)(42)

(2004); Liao, 293 F.3d at 66.

Although there is no statutory definition of

“persecution,” courts have described it as “‘punishment

or the infliction of harm for political, religious, or other

reasons that this country does not recognize as

legitimate.’” Mitev v. INS, 67 F.3d 1325, 1330 (7th Cir.

1995) (quoting De Souza v. INS, 999 F.2d 1156, 1158 (7th

Cir. 1993)); see also Ghaly v. INS, 58 F.3d 1425, 1431

(9th Cir. 1995) (stating that persecution is an “extreme

concept”). While the conduct complained of need not be

life-threatening, it nonetheless “must rise above

unpleasantness, harassment, and even basic suffering.”

Nelson v. INS, 232 F.3d 258, 263 (1st Cir. 2000). Upon a

demonstration of past persecution, a rebuttable

18

presumption arises that the alien has a well-founded fear

of future persecution. See Melgar de Torres v. Reno, 191

F.3d 307, 315 (2d Cir. 1999); 8 C.F.R. § 208.13(b)(1)(i)

(2004).

In 1996, Congress amended the statutory definition of“refugee” to provide that “forced abortion or sterilization,or persecution for failure to undergo such a procedure orfor other resistance to a coercive population controlprogram,” constitutes persecution on account of politicalopinion. See Illegal Immigration Reform and ImmigrantResponsibility Act of 1996 (“IIRIRA”) § 601(a)(1), 110Stat. at 3009-689 (amending 8 U.S.C. § 101(a)(42)).

In addition, the BIA has held that an alien whosespouse has been subjected to coerced abortion orsterilization has established past persecution againsthimself. In re C-Y-Z-, 21 I. & N. Dec. 915, 918-19, 1997WL 353222 (BIA June 4, 1997); see also Zhao v. U.S.Dep’t of Justice, 265 F.3d 83, 92 (2d Cir. 2001). As thisCourt has recognized, this rule allows an alien to apply forasylum “based on past spousal persecution even when [thealien’s spouse] remains in their native country.” Zhang v.INS, 386 F.3d 66, 72 (2d Cir. 2004). See also id. at 72-73(describing asylum claims based on China’s coercivepopulation control measures).

The asylum applicant bears the burden of

demonstrating eligibility for asylum by establishing either

that he was persecuted or that he “has a well-founded fear

of future persecution on account of, inter alia , his political

opinion.” Chen v. INS, 344 F.3d 272, 275 (2d Cir. 2003);

Osorio, 18 F.3d at 1027. See 8 C.F.R. § 208.13(a)-(b)

19

(2004). The applicant’s testimony and evidence must be

credible, specific, and detailed in order to establish

eligibility for asylum. See 8 C.F.R. § 208.13(a) (2004);

Abankwah v. INS, 185 F.3d 18, 22 (2d Cir. 1999);

Melendez v. U.S. Dep’t of Justice, 926 F.2d 211, 215 (2d

Cir. 1991) (stating that applicant must provide “credible,

persuasive and . . . . specific facts” (internal quotation

marks omitted)); Matter of Mogharrabi, Interim Dec.

3028, 19 I. & N. Dec. 439, 445, 1987 WL 108943 (BIA

June 12, 1987), abrogated on other grounds by

Pitcherskaia v. INS, 118 F.3d 641, 647-48 (9th Cir. 1997)

(applicant must provide testimony that is “believable,

consistent, and sufficiently detailed to provide a plausible

and coherent account”).

Because the applicant bears the burden of proof, he

should provide supporting evidence when available, or

explain its unavailability. See Zhang, 386 F.3d at 71

(“[W]here the circumstances indicate that an applicant has,

or with reasonable effort could gain, access to relevant

corroborating evidence, his failure to produce such

evidence in support of his claim is a factor that may be

weighed in considering whether he has satisfied the

burden of proof.”); see also Diallo v. INS, 232 F.3d 279,

285-86 (2d Cir. 2000); In re S-M-J-, Interim Dec. 3303, 21

I. & N. Dec. 722, 723-26, 1997 WL 80984 (BIA Jan. 31,

1997).

Finally, even if the alien establishes that he is a

“refugee” within the meaning of the INA, the decision

whether ultimately to grant asylum rests in the Attorney

General’s discretion. See 8 U.S.C. § 1158(b)(1) (2004);

20

Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir.

2004); Zhang, 55 F.3d at 738.

2. Withholding of Removal

Unlike the discretionary grant of asylum, withholding

of removal is mandatory if the alien proves that his “life or

freedom would be threatened in [his native] country

because of [his] race, religion, nationality, membership in

a particular social group, or political opinion.” 8 U.S.C.

§ 1231(b)(3)(A) (2000); Zhang, 55 F.3d at 738. To obtain

such relief, the alien bears the burden of proving by a

“clear probability,” i.e., that it is “more likely than not,”

that he would suffer persecution on return. See 8 C.F.R.

§ 208.16(b)(2)(ii) (2004); INS v. Stevic, 467 U.S. 407,

429-30 (1984); Melgar de Torres, 191 F.3d at 311.

Because this standard is higher than that governing

eligibility for asylum, an alien who has failed to establish

a well-founded fear of persecution for asylum purposes is

necessarily ineligible for withholding of removal. See

Zhang v. INS, 386 F.3d at 71; Chen, 344 F.3d at 275;

Zhang, 55 F.3d at 738.

3. Standard of Review

This Court reviews the determination of whether an

applicant for asylum or withholding of removal has

established past persecution or a well-founded fear of

persecution under the substantial evidence test. Zhang v.

INS, 386 F.3d at 73; Chen, 344 F.3d at 275 (factual

findings regarding asylum eligibility must be upheld if

supported by “reasonable, substantive and probative

evidence in the record when considered as a whole”

6 Although judicial review ordinarily is confined to theBIA’s order, see, e.g., Abdulai v. Ashcroft, 239 F.3d 542, 549(3d Cir. 2001), courts properly review an IJ’s decision where,as here (JA 2), the BIA adopts that decision. See 8 C.F.R.§1003.1(e)(4) (2004); Secaida-Rosales, 331 F.3d at 305;Arango-Aradondo v. INS, 13 F.3d 610, 613 (2d Cir. 1994).Accordingly, this brief treats the IJ’s decision as the relevantadministrative decision.

21

(internal quotation marks omitted)); see Secaida-Rosales

v. INS, 331 F.3d 297, 306-07 (2d Cir. 2003); Melgar de

Torres, 191 F.3d at 312-13 (factual findings regarding

both asylum eligibility and withholding of removal must

be upheld if supported by substantial evidence). “Under

this standard, a finding will stand if it is supported by

‘reasonable, substantial, and probative’ evidence in the

record when considered as a whole.” Secaida-Rosales,

331 F.3d at 307 (quoting Diallo, 232 F.3d at 287).

Where an appeal turns on the sufficiency of the factual

findings underlying the IJ’s determination6 that an alien

has failed to satisfy his burden of proof, Congress has

directed that “the administrative findings of fact are

conclusive unless any reasonable adjudicator would be

compelled to conclude to the contrary.” 8 U.S.C.

§ 1252(b)(4)(B) (2004). Zhang v. INS, 386 F.3d at 73 n.7.

This Court “will reverse the immigration court’s ruling

only if ‘no reasonable fact-finder could have failed to find

. . . past persecution or fear of future persecution.” Chen,

344 F.3d at 275 (omission in original) (quoting Diallo, 232

F.3d at 287).

22

The scope of this Court’s review under that test is

“exceedingly narrow.” Zhang v. INS, 386 F.3d at 74;

Chen, 344 F.3d at 275; Melgar de Torres, 191 F.3d at 313.

See also Zhang v. INS, 386 F.3d at 74 (“Precisely because

a reviewing court cannot glean from a hearing record the

insights necessary to duplicate the fact-finder’s assessment

of credibility what we ‘begin’ is not a de novo review of

credibility but an ‘exceedingly narrow inquiry’ . . . to

ensure that the IJ’s conclusions were not reached

arbitrarily or capriciously”) (citations omitted).

Substantial evidence entails only “‘such relevant evidence

as a reasonable mind might accept as adequate to support

a conclusion.’” Richardson v. Perales, 402 U.S. 389, 401

(1971) (quoting Consolidated Edison Co. v. NLRB, 305

U.S. 197 (1938)). The mere “possibility of drawing two

inconsistent conclusions from the evidence does not

prevent an administrative agency’s finding from being

supported by substantial evidence.” Consolo v. Federal

Maritime Comm’n, 383 U.S. 607, 620 (1966); Arkansas v.

Oklahoma, 503 U.S. 91, 113 (1992).

Indeed, the IJ’s and BIA’s eligibility determination

“can be reversed only if the evidence presented by [the

asylum applicant] was such that a reasonable factfinder

would have to conclude that the requisite fear of

persecution existed.” INS v. Elias-Zacarias, 502 U.S. 478,

481 (1992). In other words, to reverse the BIA’s decision,

the Court “must find that the evidence not only supports

th[e] conclusion [that the applicant is eligible for asylum],

but compels it.” Id. at 481 n.1.

This Court gives “particular deference to the credibility

determinations of the IJ.” Chen, 344 F.3d at 275 (quoting

23

Montero v. INS, 124 F.3d 381, 386 (2d Cir. 1997)); see

also Qiu v. Ashcroft, 329 F.3d 140, 146 n.2 (2d Cir. 2003)

(the Court “generally defer[s] to an IJ’s factual findings

regarding witness credibility”). This Court has recognized

that “the law must entrust some official with responsibility

to hear an applicant’s asylum claim, and the IJ has the

unique advantage among all officials involved in the

process of having heard directly from the applicant.”

Zhang v. INS, 386 F.3d at 73.

Because the IJ is in the “best position to discern, often

at a glance, whether a question that may appear poorly

worded on a printed page was, in fact, confusing or well

understood by those who heard it,” this Court’s review of

the fact-finder’s determination is exceedingly narrow.

Zhang v. INS, 386 F.3d at 73; see also id. (“‘[A] witness

may convince all who hear him testify that he is

disingenuous and untruthful, and yet his testimony, when

read, may convey a most favorable impression.’” (quoting

Arnstein v. Porter, 154 F.2d 464, 470 (2d Cir. 1946))

(citation omitted); Sarvia-Quintanilla v. United States INS,

767 F.2d 1387, 1395 (9th Cir. 1985) (noting that IJ “alone

is in a position to observe an alien’s tone and demeanor

. . . [and is] uniquely qualified to decide whether an alien’s

testimony has about it the ring of truth”); Kokkinis v.

District Dir. of INS, 429 F.2d 938, 941-42 (2d Cir. 1970)

(court “must accord great weight” to the IJ’s credibility

findings). The “exceedingly narrow” inquiry “is meant to

ensure that credibility findings are based upon neither a

misstatement of the facts in the record nor bald speculation

or caprice.” Zhang v. INS, 386 F.3d at 74.

24

In reviewing credibility findings, courts “look to see if

the IJ has provided ‘specific, cogent’ reasons for the

adverse credibility finding and whether those reasons bear

a ‘legitimate nexus’ to the finding.” Id. (quoting Secaida-

Rosales, 331 F.3d at 307). Credibility inferences must be

upheld unless they are “irrational” or “hopelessly

incredible.” See, e.g., United States v. LaSpina, 299 F.3d

165, 180 (2d Cir. 2002) (“we defer to the fact finder’s

determination of . . . the credibility of the witnesses, and

to the fact finder’s choice of competing inferences that can

be drawn from the evidence” (internal marks omitted));

NLRB v. Columbia Univ., 541 F.2d 922, 928 (2d Cir.

1976) (credibility determination reviewed to determine if

it is “irrational” or “hopelessly incredible”).

C. Discussion

Substantial evidence supports the IJ’s determinationthat Petitioner failed to provide credible testimony insupport of his application for asylum and withholding ofremoval and thus failed to establish his eligibility forrelief. The IJ’s credibility determination rested onPetitioner’s admission that he fabricated portions of hisasylum application, Petitioner’s inconsistent andimplausible testimony, and Petitioner’s demeanor duringtestimony. See, e.g., Qiu, 329 F.3d at 152 n.6(“incredibility arises from ‘inconsistent statements,contradictory evidence, and inherently improbabletestimony’” (quoting Diallo, 232 F.3d at 287-88)).Because all of these findings are fully supported by therecord, Petitioner cannot show that a reasonable factfinderwould be compelled to conclude that he is entitled torelief.

25

Perhaps the most compelling example of Petitioner’s

questionable credibility was his admission that he

fabricated portions of his initial asylum application

because “all [he] care[d]” about was his “CA

[employment] card.” (JA 96). As the IJ properly

concluded, the inclination to falsify information to obtain

an immigration benefit is strongly suggestive of

Petitioner’s inclination to falsify testimony to obtain

asylum. (JA 36).

In this Court, Petitioner claims that he is not

responsible for the false statements in his initial

application because they were inserted by other

“unscrupulous” people. Pet. Br. at 21-22. Petitioner

misses the point. Regardless of who made up the stories

for his asylum application, Petitioner knew that they were

not true when he signed the application. The fact that his

application contained false statements was irrelevant to

him because, as he testified, all he cared about at the time

was obtaining his work permit. (JA 95 (“[S]o I just pick

up a day, any day that I could really come up to my mind,

I thought all I need just to get a CA card I really wanted.”);

JA 96 (“I really don’t know how they made it up because

all I care at that time, at that very moment, was to get me

that CA card.”)). The IJ properly relied upon Petitioner’s

willingness to adopt falsehoods to obtain something about

which he really cared to conclude that Petitioner’s

testimony lacked credibility.

In addition to Petitioner’s admitted willingness to

fabricate stories, several inconsistencies in his testimony

undermined his credibility before the IJ. For example,

Petitioner provided inconsistent testimony regarding how

7 Petitioner’s testimony revealed other implausible andinconsistent statements which were not specifically mentionedby the IJ. For example, Petitioner testified on directexamination that he had no acquaintances in Xiamen City (JA74), until he met a former neighbor who often traveled to andfrom his village and communicated messages to and from hismother, (JA 76). On cross-examination, however, he testifiedthat he had numerous relatives in Xiamen City, one or more of

(continued...)

26

he learned of his wife’s sterilization. On direct

examination, Petitioner testified that he learned of his

wife’s sterilization after he arrived in the United States.

(JA 77). He related in detail of telephoning his brother-in-

law’s residence, speaking to his wife, learning for the first

time his wife had given birth to twins and that she had

been forced to undergo sterilization. (JA 77-78).

Petitioner recalled experiencing feelings of helplessness

because he was so far away in the United States. (JA 78).

During cross-examination, however, Petitioner testified

that he learned of his wife’s sterilization “when [he]

return[ed] home, [he] return[ed] from work, [h]e was

planning to escape . . . some time around July [1992].”

(JA 91). He elaborated that he was living in an area where

several of his wife’s relatives resided and his wife “told

them to give the message to me.” Id.

Similarly, the IJ noted that Petitioner provided

inconsistent stories about the state of his wife’s pregnancy

when the local officials demanded she have an abortion.

(JA 35). In his testimony, he stated that she was three

months pregnant (JA 62-65, 88), but in his sworn affidavit,

he had stated that she was nine months pregnant (JA 200).7

7 (...continued)whom communicated information to him from his wife. (JA91). In addition, Petitioner testified that he first learned of thebirth of his twin sons when he telephoned his brother-in-lawafter arriving in the United States (in December 1992). (JA 77-78, 199). At this time, the twin sons would have been morethan 2 years old. Despite being in contact with his family,Petitioner claimed he did not learn of the birth of the twinsuntil after December 8, 1992. Id. Similarly, Petitioner’stestimony about the fines was inconsistent. He first testifiedthat he fully paid the fine to register all three children when hewas in the United States. (JA 61). Petitioner subsequentlytestified that the fine was doubled and that an amount remainsoutstanding, but does not know the amount. (JA 61-62).Petitioner then testified that the fine was 2000 yuan, not 1500,as he previously testified, and that it was paid in advance of hiswife’s second pregnancy. (JA 86-87).

27

These obvious inconsistencies, when coupled with the IJ’s

observations of Petitioner’s demeanor, support the IJ’s

conclusion regarding Petitioner’s credibility. See Zhang

v. INS, 386 F.3d at 73 (“[T]he IJ has the unique advantage

among all officials involved in the process of having heard

directly from the applicant. A fact-finder who assesses

testimony together with witness demeanor is in the best

position to discern, often at a glance . . . whether

inconsistent responses are the product of innocent error or

intentional falsehood.”).

In response, Petitioner contends that the IJ seized on

trivial inconsistencies. He argues, for example, that

because his wife did not communicate to him in person the

event of her sterilization, his failure to recall accurately the

date is understandable and excusable. Pet. Br. at 18. The

28

flaw in Petitioner’s argument is that he did more than fail

to recall “a date”; he provided substantially and materially

inconsistent testimony of the facts and circumstances of

this memorable event. As described above, he provided

detailed testimony regarding where, when and how he

received the presumably devastating news of his wife’s

forced sterilization.

Similarly, Petitioner argues that the inconsistency withhis testimony regarding the status of his wife’s pregnancyat the time of the abortion demand was adequatelyexplained and, in any event, a trivial point. Pet. Br. at 18.The IJ’s adverse credibility finding, however, was notpredicated on an isolated factual inconsistency. It was thefrequency of inconsistencies, the materiality of the facts onwhich Petitioner provided incongruent testimony, and themanner and demeanor in which he delivered thetestimony, which served as the foundation for the IJ’sconclusion.

Moreover, contrary to his argument, Petitioner’sinconsistencies were not limited to isolated and trivialfacts. Petitioner’s claim that his wife was forcibly

sterilized is at the core of his claim of past persecution.

Such a life altering and traumatic event would presumably

imprint a lasting memory, yet Petitioner could not recall

how or where he was when he received the information.

Likewise, the government’s demand for his wife’s

abortion is critical to Petitioner’s claim of past persecutionand, if true, would tend to substantiate his claim of forcedsterilization. Notwithstanding the obvious personalsignificance of these events, Petitioner could not provideconsistent or plausible testimony on either subject. His

29

inability to do so provided the IJ with “specific, cogent”

reasons for her adverse credibility finding. See Zhang v.

INS, 386 F.3d at 74.

The IJ also based her credibility finding on herconclusion that parts of Petitioner’s testimony wereimplausible. Specifically, the IJ noted that it wasimplausible that local officials would authorize a secondpregnancy upon payment of a fine (or bond), and thendemand that Petitioner’s wife undergo an abortion. (JA35-36). This proposition is particularly implausible givenPetitioner’s testimony and statements. Again, accordingto one version offered by Petitioner, he and his wife paida 1500 or 2000 yuan fine to become pregnant. (JA 86-87).If the fine was paid, and the pregnancy authorized, asclaimed by Petitioner, then it was wholly illogical andimplausible that the local birth control officials wouldhave “discovered,” or become “suspicious,” of his wife’s“stomach . . . showing” when they appeared at agovernment office to register for a marriage certificate.(JA 63, 87). There would have been no need for suspicionas the town birth control officials had authorized thepregnancy. To then immediately demand an abortion andthreaten arrest for an authorized pregnancy defies reason.

Petitioner responds by citing the State DepartmentProfile on China to support his argument that the one-childpolicy was inconsistently enforced. Pet. Br. at 20.Nothing in the State Department profile, however,reasonably supports the proposition that Fujian Provincelocal birth control officials would authorize a secondpregnancy upon payment of a fine (or bond) and thendemand an immediate abortion. (See JA 139). In other

30

words, while the country profile might explain why localofficials might authorize a second pregnancy, it does notoffer any logical explanation for why local officials wouldauthorize a pregnancy and then immediately demand anend to that pregnancy.

Finally, the IJ’s credibility determination was

buttressed by her observations of Petitioner’s demeanor

and behavior during testimony and cross-examination.

The IJ found that Petitioner was hesitant when asked

specific questions, flustered upon questioning, and

distressed and confused during cross-examination.

Furthermore, according to the IJ, Petitioner “was

extremely evasive and unresponsive regarding questions

from the Service during cross-examination, particularly

regarding his wife’s alleged sterilization.” (JA 36-37).

The record reveals several instances where Petitioner

provided nonresponsive answers during cross-

examination. (JA 89-93). In particular, Petitioner was

asked in two instances to explain why the application

affidavit stated that government officials demanded his

wife to abort her pregnancy in the ninth month, when his

testimony at the hearing was that the demand was made at

three months. (JA 89-90). Petitioner was asked twice why

he did not include the fact of his wife’s sterilization in his

asylum application. (JA 91-92). Petitioner was asked in

four successive questions what information his wife

communicated to him about the details of the sterilization

procedure. (JA 91-93). Petitioner’s repeated failure to

provide responsive answers, and his hesitancy to respond

to questions on cross-examination, as observed by the IJ

8 Petitioner first stated that his wife provided detailsabout the procedure during a telephone conversation while hewas in the United States. (JA 92). After providing non-responsive answers in response to the first three questions,Petitioner testified that he did not inquire about the detailsbecause his wife would not have provided any. (JA 93).

31

(JA 36)8, supports the IJ’s credibility finding. See Zhang

v. INS, 386 F.3d at 74.

Petitioner contends that the IJ improperly penalized

him for his demeanor, Pet. Br. at 22-23, but the IJ properly

relied on Petitioner’s conduct during the removal

proceedings. Indeed, this Court accords “particular

deference” to an IJ’s credibility determinations precisely

because the IJ is able to observe and evaluate “witness

demeanor.” Zhang v. INS, 386 F.3d at 73-74.

In short, the record fully supports the IJ’s conclusion

that Petitioner lacked credibility and thus that he failed to

meet his burden of proving past persecution. Petitioner

cannot meet his burden of showing that a reasonable

factfinder would be compelled to conclude that he was

entitled to relief.

32

II. THE COURT LACKS JURISDICTION OVER

PETITIONER’S CLAIM THAT THE

IMMIGRATION JUDGE FAILED TO ADMIT

CERTAIN DOCUMENTARY EVIDENCE, BUT

PETITIONER’S CLAIM LACKS MERIT IN ANY

EVENT.

At the close of Petitioner’s removal hearing, the IJ held

that certain documents submitted by Petitioner would not

be admitted into evidence because Petitioner had not

properly authenticated those documents as required by

regulation. (JA 34). Petitioner challenges that decision.

This Court lacks jurisdiction to consider that challenge,

and it is meritless in any event.

A. This Court Lacks Jurisdiction Over

Petitioner’s Claim that the IJ Improperly

Excluded Certain Documents Because

Petitioner Did Not Raise This Issue

Before the BIA.

1. Relevant Facts

The relevant facts are set forth in the Statement of the

Facts above.

2. Governing Law and Standard of Review

The INA requires that all available administrativeremedies be exhausted before seeking judicial review of afinal removal order. See 8 U.S.C. § 1252(d)(1) (“A courtmay review a final order of removal only if . . . the alien

33

has exhausted all administrative remedies available to thealien as a right . . . .”). “Under the doctrine of exhaustionof administrative remedies, a party may not seek federaljudicial review of an adverse administrative determinationuntil the party has first sought all possible relief within theagency itself.” Howell v. INS, 72 F.3d 288, 291 (2d Cir.1995) (quotation omitted). If exhaustion is required, andthe party fails to do so, the court may dismiss the actionfor want of subject matter jurisdiction. Id.

Arguments or claims not raised to the BIA are deemed

waived for failure to exhaust administrative remedies.

Opere v. INS, 267 F.3d 10, 14 (1st Cir. 2001); see Chew v.

Boyd, 309 F.2d 857, 861 (9th Cir. 1962) (“failure to raise

. . . a particular question concerning the validity of [a final]

order constitutes a failure to exhaust administrative

remedies with regard to that question, thereby depriving a

court of appeals of jurisdiction to consider that question.”).

See also Arango-Aradondo v. INS, 13 F.3d 610, 614 (2d

Cir. 1994) (declining to consider constitutional claim for

ineffective assistance of counsel that was not raised before

the BIA); Correa v. Thornburgh, 901 F.2d 1166, 1171 (2d

Cir. 1990) (rejecting, in a habeas corpus proceeding, a

claim that was “never raised . . . either before the

Immigration Judge or on appeal to the BIA”).

“The purpose of Section 1252(d)(1)’s exhaustion

requirement is (1) to ‘ensure that the INS, as the agency

responsible for construing and applying the immigration

laws and implementing regulations, has had a full

opportunity to consider a petitioner’s claims,’

Theodoropoulos v. INS, 358 F.3d 162, 171 (2d Cir. 2004)

[, cert. denied, 125 S. Ct. 37 (2004)]; (2) to ‘avoid

34

premature interference with the agency's processes,’ Sun

v. Ashcroft, 370 F.3d 932, 940 (9th Cir. 2004); and (3) to

‘allow the BIA to compile a record which is adequate for

judicial review.’ Dokic [v. INS], 899 F.2d [530] at 532

[(6th Cir. 1990)].” Ramani v. Ashcroft, 378 F.3d 554, 559

(6th Cir. 2004).

When statutorily required, exhaustion of administrative

remedies is jurisdictional and must be strictly enforced,

without exception. See McCarthy v. Madigan, 503 U.S.

140, 144 (1992) (“Where Congress specifically mandates,

exhaustion is required.”); Coit Independence Joint Venture

v. Federal Sav. & Loan Ins. Corp., 489 U.S. 561, 579

(1989) (“[E]xhaustion of administrative remedies is

required where Congress imposes an exhaustion

requirement by statute.”). Cf. Bastek v. Federal Crop Ins.

Corp., 145 F.3d 90, 94 (2d Cir. 1998) (common law

exhaustion doctrine “recognizes judicial discretion to

employ a broad array of exceptions” for the failure to

exhaust administrative remedies).

This Court recently held that 18 U.S.C. § 1252(d)

embraces the statutory, or mandatory, exhaustion doctrine.

Theodoropoulos, 358 F.3d at 172. “[Section] 1252(d)’s

mandate that unless a petitioner ‘has exhausted all

administrative remedies available,’ a ‘court may [not]

review a final order of removal,’ 18 U.S.C. § 1252(d),

applies to all forms of review . . . .” Id. at 171 (alteration

in original). Thus, the failure to raise specific claims,

including a challenge to an evidentiary ruling by the IJ, to

the BIA will constitute a waiver of the claim and preclude

consideration by the appellate court for want of

jurisdiction. See Vatulev v. Ashcroft, 354 F.3d 1207, 1211

35

(10th Cir. 2003) (court without jurisdiction to consider IJ’s

“implicit rejection of . . . new evidence” when it was not

appealed to BIA). See also Ravindran v. INS, 976 F.2d

754, 763 (1st Cir. 1992) (complaints involving defective

translations, judicial conduct at hearing and evidentiary

rulings should have been raised at the BIA for appellate

court to have jurisdiction).

3. Discussion

Petitioner’s failure to exhaust his administrative

remedies as to the IJ’s ruling excluding certain

documentary submissions deprives this Court of subject

matter jurisdiction to review that ruling. As neither his

Notice of Appeal to the BIA (JA 19) nor his brief (JA 5-

10) made any mention or reference to the IJ’s evidentiary

ruling, Petitioner failed to exhaust his administrative

remedies on this issue.

Further, to the extent that an exception existed which

would excuse Petitioner’s failure to exhaust, see

Theodoropoulos, 358 F.3d at 172-73, he presents no

factual or legal basis to excuse his failure. Petitioner’s

failure to raise to the BIA the IJ’s exclusion of certain

documents deprived the Court of an adequate record to

review the ruling. This Court lacks jurisdiction to review

this claim.

36

B. Petitioner’s Challenge to the IJ’s

Evidentiary Ruling Lacks Merit.

As a preliminary matter, Petitioner’s claim that the IJ

improperly excluded documents is undermined by the

record in this case. When Petitioner first submitted the

copies of his documents at the 1999 hearing, the IJ

expressly notified Petitioner that he needed to obtain

originals for the proceedings. (JA 52). Nevertheless, at

the close of the 1999 hearing, the IJ admitted two of the

documents (the marriage certificate and the household

registry) into evidence. (JA 97-98). With respect to the

other documents, even though the hearing was continued

on at least two occasions, Petitioner never attempted to

offer the original documents to the IJ or even to explain

that he could not obtain the originals.

Petitioner now claims that the IJ should have enlisted

the United States Government to undertake efforts to

authenticate the documents, and that as a person being

persecuted it is more difficult for him to obtain the

necessary authentication. Pet. Br. at 17. Petitioner never

asked for assistance in obtaining original documents,

however. And the IJ cannot be faulted for failing to offer

any assistance sua sponte because she had every reason to

believe that obtaining original documents would be easy

for Petitioner: he had already presented the original

documents to the asylum officer, who had returned the

originals to Petitioner.

Even if the IJ had admitted and considered all the

documentary evidence marked for identification, the

9 The exhibits which document the date of the tubal(continued...)

37

additional evidence was not “so compelling that no

reasonable factfinder could fail to find the requisite fear of

persecution.” Elias-Zacarias, 502 U.S. at 483-84. In the

“exceedingly narrow” inquiry of reviewing the IJ’s

adverse credibility findings, the Petitioner’s inconsistent

statements on matters material to his claim and the

“‘inherently improbable testimony’” on these matters,

justified the IJ’s conclusions. See Zhang v. INS, 386 F.3d

at 74 (quoting Diallo, 232 F.3d at 288). The additional

documents offered by Petitioner would not have rendered

the IJ’s findings as being based on a misstatement of facts,

or “bald speculation or caprice.” Id.

Moreover, the documents, even if considered by the IJ,

neither contradict nor undermine any of the IJ’s factual

findings. For example, Exhibits 7 and 8 (Birth Control

Operation Letter and a Surgical Operation Certificate)

both reference Petitioner’s wife and appear to bear on her

alleged sterilization. (JA 182-85). These exhibits,

however, do not add any information or evidence not

already considered by the IJ. Exhibit 15, the radiological

report from Guam Memorial Hospital, was admitted into

evidence and considered by the IJ. (JA 37, 112-113). The

IJ found that “it appears that there is some likelihood that

[Petitioner’s] wife was, in fact, sterilized. However, the

[Petitioner] has not established that th[e] sterilization was

forced.” (JA 37). Exhibits 7 and 8 merely substantiate the

likelihood of the sterilization; they do not support

Petitioner’s claim that the sterilization was forced.9

9 (...continued)ligation as March 20, 1992, also highlight the inconsistenttestimony offered by Petitioner about when he learned of thesterilization and where he was. (See JA 35). The documentsalso serve to undermine Petitioner’s credibility because hemakes no mention of forced sterilization in his application forasylum. (JA 200).

38

Contradictory and implausible testimony convinced the IJ

to find that Petitioner failed to carry his burden of proving

past persecution or a well-founded fear of future

persecution, and these documents, if considered, would not

impugn that finding.

Several other exhibits would likely have no bearing on

the IJ’s decision since they contain either irrelevant

information or document uncontroverted facts. Exhibit 13,

a certification for the birth of Petitioner’s twin boys,

contains the date of birth and the fine amount paid. (JA

158). Exhibit 10 appears to be a copy of two photographs,

presumably Petitioner’s family (JA 176), and Exhibit 9

purports to be Petitioner’s birth certificate. These exhibits

do not bear on any issues in dispute and were not relevant

to any of the IJ’s findings.

Finally, Exhibits 3-6 arguably support the IJ’s finding

that Petitioner provided inconsistent testimony. Those

Exhibits, which all purport to be payment receipts for a

fine paid to Tingjiang Town Birth Control office (JA 186-

92), reveal a total fine imposed of 1500 yuan on Petitioner

and his wife for two excessive births. Id. They appear to

document payments beginning in November 1992 and

ending in July 1996. Id. Insofar as the documents

39

contradict Petitioner’s testimony that a balance remains

unpaid (JA 61), and his testimony as to when the fine was

paid (JA 60-61), the IJ’s adverse credibility finding is

further justified.

More importantly, however, the IJ did not base her

findings on whether a fine was imposed, the amount of the

fine, or the purpose of the fine. (JA 35-37). The IJ’s

finding on the implausibility of Petitioner’s testimony

would not have been influenced if these documents were

admitted because the receipts make no mention of

abortion, nor do they indicate when notice of the fine was

given to Petitioner. The documents, had they been

admitted, in no way contradict or undermine the IJ’s

factual findings because they do not correct or explain the

inconsistent and implausible testimony of Petitioner. In

fact, the documents suggest a version of events different

from both of the versions offered by Petitioner during the

hearing. Thus, the IJ decision embraces “specific, cogent”

reasons for the adverse credibility finding and a

“legitimate nexus” between the reasons and the finding.

Zhang v. INS, 386 F.3d 66, 74.

40

CONCLUSION

For each of the foregoing reasons, the petition forreview should be denied.

Dated: November 24, 2004

Respectfully submitted,

KEVIN J. O’CONNOR UNITED STATES ATTORNEY

DISTRICT OF CONNECTICUT

BRIAN P. LEAMINGASSISTANT U.S. ATTORNEY

SANDRA S. GLOVERAssistant United States Attorney (of counsel)

CERTIFICATION PER FED. R. APP. P. 32(A)(7)(C)

This is to certify that the foregoing brief complies withthe 14,000 word limitation requirement of Fed. R. App. P.32(a)(7)(B), in that the brief is calculated by the wordprocessing program to contain approximately 9,468 words,exclusive of the Table of Contents, Table of Authorities,Addendum of Statutes and Rules, and this Certification.

BRIAN P. LEAMINGASSISTANT U.S. ATTORNEY

Addendum

8 U.S.C. §1101(a)(42)

(42) The term “refugee” means (A) any person who isoutside any country of such person's nationality or, in thecase of a person having no nationality, is outside anycountry in which such person last habitually resided, andwho is unable or unwilling to return to, and is unable orunwilling to avail himself or herself of the protection of,that country because of persecution or a well-founded fearof persecution on account of race, religion, nationality,membership in a particular social group, or politicalopinion, or (B) in such special circumstances as thePresident after appropriate consultation (as defined insection 1157(e) of this title) may specify, any person whois within the country of such person's nationality or, in thecase of a person having no nationality, within the countryin which such person is habitually residing, and who ispersecuted or who has a well-founded fear of persecutionon account of race, religion, nationality, membership in aparticular social group, or political opinion. The term"refugee" does not include any person who ordered,incited, assisted, or otherwise participated in thepersecution of any person on account of race, religion,nationality, membership in a particular social group, orpolitical opinion. For purposes of determinations underthis chapter, a person who has been forced to abort apregnancy or to undergo involuntary sterilization, or whohas been persecuted for failure or refusal to undergo sucha procedure or for other resistance to a coercive populationcontrol program, shall be deemed to have been persecutedon account of political opinion, and a person who has awell founded fear that he or she will be forced to undergo

such a procedure or subject to persecution for such failure,refusal, or resistance shall be deemed to have a wellfounded fear of persecution on account of politicalopinion.